Iona Whyte

October marked domestic abuse awareness month, a time to raise awareness of the many forms of abuse that can occur within relationships and to remind those affected that help is available. We thought it was timeous to provide a general overview of what we can do in order to assist those who find themselves in such a situation – no matter what time of the year it is.

What is Domestic Abuse

The Domestic Abuse (Scotland) Act 2018 creates a specific offence for “abusive behaviour towards a partner or ex-partner”. As well as covering physical abuse, the law extends to psychological abuse, emotional abuse, coercive and controlling behaviour.

Some practical examples of what this behaviour might look like include:

Calling you names and putting you down
Refusing to trust you and acting jealously or accusing you of cheating
Trying to stop you from seeing family or friends
Physical abuse such as punching, slapping, kicking
Not letting you have any access to the bank account or money
Stopping you from working
‘gaslighting’ you- lying so that you start to think that you are going mad and can’t trust your own judgement
Not paying maintenance for children when the relationship has ended
Watching your social media accounts i.e. keeping track of who likes your posts, who messages you

Protection for Victims of Domestic Abuse

If your partner or ex-partner has acted in a way that is threatening, abusive, or has caused you fear, alarm, or distress, you can contact Police Scotland to report the situation. In addition to the criminal route, there are also several civil orders available to help protect you:

Interdict

An Interdict is a court order that stops someone from doing specific things, for example, approaching you or coming within a certain distance of the family home. If you’re at immediate risk, the court can grant an Interim Interdict.

Powers of Arrest

Where an Interdict has been granted, a Power of Arrest can be attached to the order as an additional layer of protection. In the event that a person breaches the terms of the Interdict, the police then have the ability to arrest the person.

Non-Harassment Order (NHO)

A Non-Harassment Order is designed to prevent behaviour which amounts to harassment and causes you harm or distress. For example, if your ex-partner is repeatedly phoning you, or coming to your house. A non-harassment order is granted by the Sheriff Court and cannot be granted on an interim basis. The person subject to a non-harassment order would automatically commit a criminal offence if they were to breach that order.

Exclusion Orders

If your partner or ex-partner has certain rights (known as occupancy rights) to the family home, you can apply to the court for an exclusion order to have them excluded from the property. Occupancy rights are the right to live in the family home and apply where an individual is named on the title deeds or named as a tenant on the tenancy agreement. You can apply for an exclusion order if both you and your partner or ex-partner have the right to occupy and your partner or ex-partner has harmed or threatened to harm you and/or your children, either physically or mentally. An exclusion order suspends the occupancy rights of your partner or ex-partner for an initial 6-month period.

The Domestic Abuse (Protection) (Scotland) Act 2021

The Domestic Abuse (Protection) (Scotland) Act 2021, came into force on 05 May 2021 and provides new protections for victims of domestic abuse. The 2021 Act introduces two further forms of protection Domestic Abuse Protection Notices (DAPNs) and Domestic Abuse Protection Orders (DAPOs).

A DAPN allows a Senior Officer of the police to impose certain requirements or restrictions on your partner or ex-partner. For example, your partner or ex-partner can be prevented from contacting you. Once the police have imposed a DAPN, they must make an application to the court for a DAPO no later than the next court day.

DAPNs and DAPOs can provide the person at risk with immediate protection which does not require any action to be taken by the person at risk and which is independent of any criminal investigation.

It is important to note that this is a summary and not exhaustive. Comprehensive legal advice is essential in these matters.

If you feel that you require assistance in respect of seeking a civil order, or just wish to speak to someone about the options available to you, then please do contact us on family@wjm.co.uk or 0141 248 3434.

Helpful resources:

Police Scotland: 101 (non-emergency) or 999 (emergency)
Women’s Aid Scotland: https://womensaid.scot/
NHS UK: Comprehensive information on recognising and getting help for domestic violence and abuse. https://www.nhs.uk/live-well/getting-help-for-domestic-violence/

Abused Men in Scotland (AMIS) https://abusedmeninscotland.org/
Scottish Women’s Right Centre https://www.scottishwomensrightscentre.org.uk/

Adoption Week Scotland takes place every November — a time to celebrate adoption and raise awareness about what it means to provide a child with a loving, permanent home. This year’s theme is Growing Our Family Through Adoption and we have prepared a simple guide to how adoption works for prospective adopters in Scotland and what to expect from the process.

What is adoption?

Adoption is when you become a child’s permanent legal parent through a court order, called an Adoption Order. Once the order is granted, you will obtain full parental rights and responsibilities in relation to the child.

Who can adopt?

You can apply to adopt either on your own (as an individual) or as part of a couple. Other criteria for adoption include:

You are 21 or older
You live in Scotland and have done so for at least one year
You have a spare room for a child

The Adoption Process

The first step is to contact a registered adoption agency. There are 32 local authority teams and 4 voluntary adoption agencies across Scotland.

A social worker will carry out an Initial Assessment Report, looking at things like your home, finances, background checks, and motivation to adopt.
Your application will then go to an adoption panel, which decides if you are suitable to become an adoptive parent.

Once you are approved as a prospective adopter you can begin the process of exploring possible matches with a child. You will be given information about the child, and if the professionals agree that you and the child are compatible, a Matching Panel will be scheduled.

The Matching Panel will discuss the proposed match and then make a recommendation to the Agency Decision Maker. The Agency Decision Maker will decide within 14 days of the panel meeting if the match is to be approved.

If approved, the child will then be placed with you at your home. The adoption agency will monitor the placement to ensure it is going well.

Provided that the placement goes well, you should seek legal representation and after at least 13 weeks of continuous care — and once the child is at least 19 weeks old — you can apply to the sheriff court for an Adoption Order.

The Court Process

Adoptions in Scotland are governed by the Adoption and Children (Scotland) Act 2007.

Your solicitor will prepare and lodge your application to adopt, known as a petition, with the sheriff court, along with the child’s birth certificate and any other required documents.

If anyone wishes to oppose the adoption, they usually must do so within 21 days. A preliminary hearing is normally scheduled around eight weeks after lodging the petition.

A Curator ad litem (Independent solicitor) and Reporting Officer (usually the same person) will be appointed to prepare a report, gather the child’s views (if appropriate), and confirm whether consent is given.

Consent of birth parents

An adoption order can be granted if the birth parents’ consent to the adoption. Alternatively, the consent of the birth parents can also be dispensed by the Sheriff if for example, the birth parents cannot be found or cannot satisfactorily discharge their responsibilities or exercise their parental rights in respect of the child, which failing if the child’s welfare requires such an order to be made.

If the adoption order is unopposed, the adoption order will usually be granted at the preliminary court hearing. If the adoption order is opposed by the birth parents, further court hearings will be required.

The Sheriff will only grant an adoption order if it is in the best interest of the child that an adoption order is made rather than not.

If you are considering growing your family through adoption, our expert Adoption team would be delighted to assiat you through the process.

contact: adoption@wjm.co.uk

Navigating summer holidays as separated parents

With the summer holidays fast approaching many separated parents will be planning holidays at home and abroad with their children and making arrangements with their children’s other parent.

Shared care arrangements over the holidays may already have been agreed in advance informally, by way of Minute of Agreement or Court order regulating contact over the school holidays. However, if this is not the case, or you wish to make some changes, this is something to consider as early as possible in your holiday plans.

What does the Law say

Legally there is a difference between taking a child on holiday within the United Kingdom and abroad. Section 2(3) of the Children (Scotland) Act 1995 states that, no person is entitled to remove a child who is habitually resident in Scotland out with the UK without the consent of any other person who holds Parental Rights and Responsibilities, unless there is a court order regulating the matter. This rule applies up until a child is 16.

While the 1995 Act does not require a signature from the other parent as proof of consent to the child travelling abroad, we would generally advise parents obtain this to avoid any issues at the airport.

The country you intend to travel to may have different regulations, and these should be thoroughly researched before travel. If you have a different surname from your child, you may require to bring your child’s birth certificate or Decree of divorce [if that is the current form of your relationship].

Border controls can be thorough when an adult is travelling with a child, and our family law team can assist in preparing the relevant documents that may be required to travel abroad with your child.

Withholding consent to travel

If you wish to take your child on holiday abroad and the other parent is withholding their consent, you can apply to the court to grant an order known as a “Specific Issue Order” to allow you to travel. Such orders can allow release of the child’s passport to you, if withheld, and authority to travel abroad for a specified period.

Likewise, if you are concerned about your child travelling abroad with your former partner, as a parent with parental rights and responsibilities, you also have the authority to withhold or withdraw your consent to travel if considered in your child’s best interests. The test for the court here is to determine if consent is being withheld unreasonably.

If you consider your child’s other parent may seek to take your child abroad without your consent, you can apply to the court seeking an order preventing them from being removed from the UK.

Preparation is key

As with any holiday plans, forward planning is key. Share you plans with your child’s other parent as early as possible and if you have any concerns consent may be withheld, speak to a family law solicitor who can assist with getting your family holiday back on track.

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Navigating Civil Protections against Domestic Abuse in Scotland

Growing Your Family Through Adoption

Sun, Sea and Section 2(3)

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